The Court of Appeal’s much anticipated judgment in the mixed tariff and non-tariff injury test cases Rabot v Hassam and Briggs v Laditan [2023] EWCA Civ 19 has been widely reported. In this article, we will focus upon the practical impact of the decision.

The judgment has been summarised as:

The approach of the court to an assessment of damages in respect of a tariff and non-tariff award where concurrently caused PSLA is present is that the court should:

  • assess the tariff award by reference to the Regulations;
  • assess the award for non-tariff injuries on common law principles and
  • (“step back” in order to carry out any necessary adjustment so as to avoid any possible overcompensation.

There is one caveat, namely that the final award cannot be less than would be awarded for the non-tariff injuries if they had been the only injuries suffered by the claimant.

Concurrently caused PSLA

Damages for PLSA consist of three elements: –

  1. Pain
  2. Suffering
  3. Loss of Amenity

The only element that was in dispute before the Court of Appeal was the third element, namely the potential overlap of the same loss of amenity that may be allowed for in the tariff award and in the common law valuation of the non-tariff injury – referred to as concurrently caused in the judgment.

In response to the proposition put by Stuart-Smith LJ, “if there’s no overlap there’s no problem is there?”, counsel for Defendant agreed that if the injuries were entirely separate then there would be no need for an adjustment to the damages.

It therefore follows that damages for pain and suffering will not be affected. As Sir Geoffery Vos the Master of the Rolls stated:

“The damages claimed for the pain and suffering caused by the knee injury in Rabot and by the knee, elbow, chest and hip injuries in Briggs are, of course, not covered by the statutory provision limiting the amount of damages for the PSLA caused by the whiplash, because that pain and suffering caused by those injuries was not the same as the pain and suffering caused by the whiplash.”

In his dissenting judgement Sir Geoffery Vos referred only to the treatment of loss of amenity. He contended that this singular aspect was caught by the act. The logic there is easy to follow. If an individual had a six month neck injury and a six month wrist injury meaning he could not play badminton for 6 months due to his neck injury he should not be compensated again for loss of amenity for the wrist injury as he could not play in either event and had been compensated accordingly.

Had it been argued that pain and suffering was also to be reduced, then it would follow that it was being argued there could be a reduction for different injury, without overlap (pain in one area of the body will always be different from pain in another area) and as can be seen from above that was not the case that was put in submissions to the Court of Appeal.

What does this all mean in Practice?

In practice this means that in the majority of cases there will only ever be a dispute over sums in the hundreds of pounds and that valuing mixed claims will not be too difficult.

The Court of Appeal Approach

Taking the figures in the Rabot case as an example, the non-tariff injuries alone were assessed at £2,500 and the tariff award was £1,390. The lowest the claim could theoretically be assessed at would be £2,500 but that would equate to treating the entirety of the tariff award as overlap for loss of amenity, which it cannot be, as that also includes pain and suffering. A defendant might argue the combined award should be say £3,000, and the claimant say £3,500, which would leave them only £500 apart.

As the combined award will always have to be the minimum of the tariff or non-tariff valuation, whichever is higher, and can only be reduced for overlap of loss of amenity, there simply won’t be the scope for the parties to be far apart in their adjustments. They may of course be far apart in their valuations of the non-tariff injury alone but that can always be the case whilst damages are assessed under the common law.

Could an appeal to the Supreme Court make any difference?

In practice, no.

It is worthwhile to consider again the dissenting judgment of the Master of the Rolls. His conclusion was that the Civil Liability Act and Regulations fix the full amount of damages for the loss of amenity within the scope of the Act, whether caused by the whiplash or otherwise. There cannot be overlap as “the claimant could not claim additional compensation for the same loss of amenity caused also by another injury on a different common law basis. The statute had dictated the compensation that was to be paid for that very loss.”

He therefore found that the Act could affect the amount of damages awarded for non-tariff injuries. Whilst at first blush this seems to be far more favourable for defendants, we do not believe that it would make much, if any, difference in practice.

A Favourable Supreme Court Approach

If the dissenting judgement was preferred by the Supreme Court, this would involve allowing nothing for concurrently caused loss of amenity within the non-tariff valuation and aggregating the pain and suffering element  with the tariff award. Taking Rabot again, the non-tariff injury was pain and suffering in both knees for 4-5 months. The loss of amenity was disturbed sleep and difficulties in carrying heavy items; bending; exercising; driving for long periods; going out to see family and friends; and putting the bins out.

We would expect that the damages element for being in pain for 4-5 months would make up the majority of the PSLA award. If we were to say that pain and suffering was £1,700 and loss of amenity £800, then with the tariff of £1,390 we would have a combined award of £1,700 + £1390 = £3,090, almost the same as the Judges figure of £3,100.

In Briggs, the tariff award was £840. The non-tariff injuries were to the elbow, knee, chest and hips. The Judge at 1st instance stated:

“The Claimant took 4 days off work as a taxi driver before returning to normal duties and hours. There were no other significant problems caused in terms of loss of amenity.” and

“I cannot discern any particular difficulty occasioned by any of these injuries, particularly the knee injury, but they were clearly painful to a degree over a period of time. Overall, I think a free-standing award would be in the region of £3,000.00. That figure is reached by taking the JC Guideline figure of £2,250.00 in respect of the knee injury and adding an element for the other issues.”

The loss of amenity element in Briggs was minimal. If we were to say it was £500 of the value then the combined award would be £2,500 + £840 = £3,340, more than the Judges award of £2,800 and close to the award on appeal of £3,500.

Accordingly, even if the test cases were successfully appealed, we do not expect there will be a significant difference to how these claims will be valued in practice. The problem is that the battleground will still be limited to reductions in loss of amenity.

Conclusion

In our view, the certainty and the parity between tariff and non-tariff injuries that is being sought will only be achieved by extension of the scope of the Civil Liability Act.

The judgment highlights the need for effective strategies, not only to value these claims but to validate and defend. The judgment quoted the data from Q3 2022 of 67.3% of claims in the OIC being mixed injuries and that figure rose to 67.8% in Q4 2022.

If you would like to hear our views on this or ask any questions please contact Paul Brandish and please join us in our live event on 3 February 2023 where we will be discussing further the practical steps to value and investigate these claims and our views on how the decision will change claimant behaviours.

Mixed Injuries